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Letter of Intent between the United States Department of Homeland Security and the Canada Border Services Agency for Phase I of the Entry-Exit System

The United States (U.S.), represented by the Department of Homeland Security (DHS) and Canada, represented by the Canada Border Services Agency (CBSA), hereinafter referred to as the “Participants,” intend to implement Phase I of the Entry/Exit System as described in the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness Action Plan.

1. Introduction

(a) WHEREAS paragraph 5(1)(b) of the Canada Border Services Agency Act recognizes that the CBSA is responsible for providing integrated border services by implementing agreements between the Agency and a foreign state to carry out an activity or provide a service or program;

(b) WHEREAS paragraph 13(2)(a) of the Canada Border Services Agency Act authorizes the CBSA to enter into an agreement or arrangement with a foreign state;

(c)WHEREAS section 103(a)(3) of the Immigration and Nationality Act of 1952 (INA), as amended, gives the Secretary of Homeland Security the authority to perform acts as necessary to carry out the administration and enforcement of immigration laws;

(d)WHEREAS the Participants share The Statement of Mutual Understanding on Information Sharing signed in February, 2003 as amended (herein referred to as the SMU);

(e) WHEREAS each Participant acknowledges invoking Article 4(c) of the SMU by way of this Letter of Intent (herein referred to as LOI);

(f) WHEREAS the Participants share a common desire to implement the concepts articulated in the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness Action Plan (herein referred to as the BBAP) relating to the initiative to establish and coordinate entry and exit information systems, including a system that would permit information sharing in a manner such that a record of a land entry into one country can be utilized to establish an exit record from the other (herein referred to as Entry/Exit); and

(g)WHEREAS the Participants share an understanding that their respective domestic privacy laws and policies, in addition to the Statement of Privacy Principles, by the United States and Canada, guide and inform information sharing arrangements in the context of the BBAP.

2. Preamble

(a) As part of the implementation of the BBAP, the Participants intend to develop an Annex under the SMU for Phases II and beyond that would enable data transfers of biographic (i.e. name, document number) information about third country nationals, permanent residents of Canada and lawful permanent residents of the United States collected at automated land ports of entry, between the Participants to confirm exit of individuals from each other's country.

(b) The Participants understand that this LOI is an interim measure to allow for a minimal data exchange, as outlined in paragraphs 6 and 8 of this LOI, and permit the future development of the Annex to the SMU to contain all necessary and appropriate procedures and rules, and that exit data can be successfully reconciled with entry data.

(c) The Participants also intend to develop an additional legal framework for the exchange of information on Canadian and U.S. citizens for Phase III of the Entry/Exit system.

THE PARTICIPANTS HEREBY EXPRESS THEIR INTENT AS FOLLOWS:

3. Definitions

For the purposes of this LOI:

(a) Third Country National means a person who is not a citizen of Canada or a citizen or national of the United States under their respective laws.

(b) Permanent Resident of Canada means a person who has acquired permanent resident status and has not subsequently lost that status under the Immigration and Refugee Protection Act.

(c) Lawful Permanent Resident of the United States means a person who has been lawfully admitted for permanent residence, as defined in Section 101(a)(20) of the U.S. INA, as amended.

4. Purpose

(a) The Participants intend that this LOI, in conjunction with the SMU, establish the framework for the collection, retention, use, disclosure and disposal of biographic entry data for Phase I of Entry/Exit for the purpose of establishing a record of exit from the United States and Canada. The Participants understand that Phase I is limited in scope to the exchange of biographic information on third country nationals, permanent residents of Canada, and lawful permanent residents in the United States who enter either country at four pre-determined automated land border ports of entry as outlined in paragraph 6 of this LOI.

(b) The Participants intend to measure the ability to reconcile biographic entry records between Canada and the United States, in order to inform subsequent phases of the project consistent with the terms of an Annex to the SMU.

(c) The Participants intend to use the data exchanged under this LOI for the purposes outlined in this section: to determine the ability to reconcile exit data to data previously collected, as entry data, for those same individuals; and for statistical and analytical purposes to support the development of future technology; and other improvements for subsequent phases of this BBAP item.

(d) The Participants do not intend to disclose any data exchanged under this LOI with any other domestic agency or foreign government without the consent of the Participant from whom the data was received, or as otherwise required by their respective laws and policies.

5. Governance/Authority

(a) The Participants intend to exchange information consistent with the provisions of the SMU, which facilitates the sharing of immigration information between Canada and the United States.

(b) The Participants intend to respect and follow all of the parameters of the SMU. The Participants reaffirm their intent to share information in a manner consistent with their respective domestic laws and policies.

6. Data Exchange Criteria

(a) The Participants intend to exchange approximately ninety (90) days of entry information on individuals who meet the following criteria:

1) Entered Canada or the United States between September 30, 2012, and January 31, 2013; and

2) Are believed to be third country nationals, permanent residents of Canada or lawful permanent residents of the United States as described in this LOI; and

3) Entered Canada or the United States at any of the following ports of entry:

i. CANADA:

(a) Pacific Highway, Surrey, British Columbia;

(b) Douglas (Peace Arch), Surrey, British Columbia;

(c) Queenston-Lewiston Bridge, Niagara on the Lake, Ontario;

(d) Rainbow Bridge, Niagara Falls, Ontario.

ii. UNITED STATES:

(a) Pacific Highway, Blaine, Washington;

(b) Peace Arch, Blaine, Washington;

(c) Lewiston-Queenston Bridge, Lewiston, New York;

(d) Rainbow Bridge, Niagara Falls, New York.

7. Exclusions

(a) The Participants do not intend to share biometric information under this LOI.

(b) The Participants do not intend to exchange information under this LOI on any U.S. citizen or national, any Canadian citizen, persons who hold registered Indian status under Canada's Indian Act, or any person eligible to cross U.S. borders pursuant to section 289 of the INA, based on the travel document the individual presents at the respective ports of entry.

8. Data Elements for the Exchange

Consistent with Article 5 of the SMU, the Participants intend to exchange the following biographic entry data elements meeting the appropriate criteria described above:

1. First/Given name

2. Last name/Surname

3. Middle Name

4. Date of birth

5. Nationality/Citizenship

6. Gender

7. Document type

8. Document number

9. Work location code/U.S. Port of Entry codes

10. Date of entry

11. Time of entry

12. Document country of issuance

9. Frequency

(a) The Participants intend to exchange information, as described within this LOI, between one and three times during Phase I, containing approximately ninety (90) days of data collected at land ports of entry, listed in paragraph 6, over the time period of September 30, 2012 to January 31, 2013.

(b) The Participants understand that this LOI should not limit additional exchanges of information (during the September 30, 2012 – January 31, 2013 time period) as may be required in order to better support the development of subsequent phases.

(c) The Participants intend that the data elements exchanged only include the biographic information of the travellers as outlined in paragraphs 6 and 8, and which is collected within the time period, as set forth within this LOI.

10. Procedure

(a) The Participants intend to exchange the data elements described above, for the categories of individuals described above, through existing secure electronic channels previously established between the Participants.

(b) DHS intends to reconcile the entry records received from the CBSA, for the purposes outlined in paragraph 4 of this LOI, against the holdings in the Arrival Departure Information System, which is the DHS system designed to reconcile arrival and departure information and may retain such records consistent with applicable U.S. laws and policies and paragraph 12(i) of this LOI.

(c) The CBSA intends to reconcile the entry records received from DHS, for the purposes outlined in paragraph 4 of this LOI, against the holdings in the CBSA's Passage History System, which is the CBSA system designed to reconcile arrival information and may retain such records consistent with applicable Canadian laws and policies and paragraph 12(i) of this LOI.

(d) Neither Participant is to have direct query access to the systems of the other Participant.

Following the conclusion of the time period established, the Participants intend to prepare a joint report concerning the number of cases they each received, and the percentage of those successfully reconciled to an entry record as well as any other lessons learned during this process.

11. Cost

Each participant intends to be responsible for its own costs for all activities conducted under this LOI.

12. Privacy

(a) The Participants intend to share information in a manner consistent with the terms of this LOI and their respective domestic privacy laws and policies, and also consistent with the Statement of Privacy Principles of the BBAP agreement.

Permitted Use

(b) The Participants intend that the exchange of entry information under this LOI be limited to that which is necessary to successfully reconcile entry and exit records within the systems of each country, for the purposes described in this LOI, or as otherwise required by their respective domestic laws and policies.

Information Security

(c) The Participants intend to treat information received from the other in confidence and take all reasonable measures to preserve its confidentiality and integrity and to safeguard the information against accidental or unauthorized access, use or disclosure.

(d) The Participants intend to protect all information exchanged with administrative, technical, and physical safeguards appropriate to the sensitivity of the information.

(e) The Participants intend to only disclose information exchanged with authorized individuals with a need to know, who require this data as a regular part of their official duties, and for uses that are consistent with the stated purposes in paragraph 4 of this LOI, the SMU, and purposes for which the information was originally collected, or as otherwise required by their respective domestic laws and policies.

Information Integrity

(f) The Participants intend to make reasonable efforts to ensure that the information shared under this LOI is accurate, timely, and relevant. The Participants intend to take corrective action if they receive notification from the other Participant that there are inaccuracies in the information originally provided.

Public Notification

(g) The Participants intend to notify the public of the parameters of the collection of this information and, to the extent specified in their respective domestic laws and policies, to provide all persons who are the subject of information exchanged under this LOI, the opportunity to request access to personal information about themselves, as well as the opportunity to request correction of the personal information where the individual believes there is an error or omission.

(h) The Participants intend to coordinate such notifications to the public, within the parameters of their respective domestic laws and policies.

Retention

(i) The Participants intend to retain personal information no longer than six months beyond the last exchange of information, to the extent consistent with their respective domestic laws and policies to carry out the purposes identified in this LOI.

(j) Once the aforementioned joint report has been produced, the information collected electronically is to be destroyed in the most secure manner possible in order to make it irretrievable, not simply erased from databases consistent with the Participants' respective domestic laws and policies.

Privacy Breach

(k) To provide further safeguards for the privacy, security, confidentiality, integrity and availability of the information systems and the information they store, process and transmit, the Participants intend to provide notice to each other as follows:

1) Immediate notification by telephone or e-mail in the event of a disaster or other situation that disrupts the intended transfer of information between them; and

2) Immediate notification in writing as soon as reasonably practicable, but no later than 24 hours after becoming aware of any breach of the security of the information systems containing, or unauthorized use or disclosure of, any personal information shared under this LOI.

(l) The Participants intend to cooperate with each other in conducting any review or audit of compliance with this LOI.

13. DESIGNATED OFFICIALS

The Participants designate the following officials for the purposes of the overall administrative responsibility of this LOI. These officials are also responsible for receiving any notices or changes provided for herein.

14. Differences in Interpretation and Application

(a) The Participants intend to resolve any differences in the interpretation or application of this LOI consistent with the SMU.

(b) This LOI sets forth the intentions of the Participants with regard to Phase I of the Entry/Exit initiative.

(c) This LOI is not intended to create or confer any right or benefit of any kind, either substantive or procedural that may be enforceable by any third party against the Participants, the governments of the United States and Canada, or the officers, employees, agents, or associated personnel thereof.

(d) The provisions of this LOI are not intended to create any binding obligations of any kind between the Participants. Nothing in this LOI is intended to restrict the authority of either Participant to act as provided by law, status, or regulation, or to restrict any Participant from administering or enforcing any laws within its authority or jurisdiction.